Recent Development
The constitutional court’s decision Nos. 2018/14389 and 2018/12722 regarding violations of the ownership right were published in the Official Gazette on 11 August 2021. In these decisions, the court established the circumstances in which there would be a breach of the ownership right by interim injunction decisions and provided crucial points on repeating administrative fines.
Background of the Cases In Question
- Decision No. 2018/14389 Dated 13 April 2021
In 2006, the local court ruled for an interim injunction on the relevant immovable properties in a deed nullification and registration case for a fictitious transaction of the testator. The defendant applicant claimed that his ownership right has been breached by limiting his right of domain on his immovable properties, as the case has been ongoing since 2006.
- Decision No. 2018/12722 Dated 30 June 2021
The applicant was fined for noise pollution in accordance with the Code on Environment Article 20/1(h), but the fine was not duly communicated to the applicant. Following the fine, another fine was unlawfully instated again on the basis of the same article. This time, a higher fine was implemented in accordance with Article 23 of the Code on Environment, titled “Repetition of the Act.” The applicant argued that the repetition of the act provision should not apply when the former fine was not duly communicated and that the fine in question that breached this rule also breached his ownership right by damaging his estate.
What Do the Decisions Say?
- On Interim Injunctions Disproportionately Burdening Property Owners
The constitutional court’s decision No. 2018/14389 dated 13 April 2021 affirmed that certain measures could be used to secure certain receivables, but that these measures should not put a burden that is more than inevitable onto the property owner. In this context, the court concluded that the interim injunction decision that has been ongoing since 2006 was not reasonable on the basis of time and that the interim injunction in question was limiting the ownership right by disproportionately burdening the applicant. Thus, the constitutional court has established that the applicant’s ownership right was breached and that the applicant was eligible for TRY 10,000 in non-pecuniary damages. Additionally, the constitutional court underlined that the court authorities were responsible for showing the necessary urgency and care to the ownership right throughout the interim injunction procedure.
- On Applying Repetitive Administrative Fines After an Unduly Communicated First Administrative Fine
The constitutional court’s decision No. 2018/12722 dated 30 June 2021 stated that for the repetition of the acts provision to apply, the first administrative fine needs to be finalized by due communication, and that the person fined simply knowing of the fine is not sufficient to apply repetition of the act provisions. On the facts of this case, the court held that the applicant being administratively fined is an engagement with its ownership right, and that this engagement does not have a foreseeable statutory reasoning since the first fine was not duly communicated. Therefore, the ownership right was breached.
Conclusion
The constitutional court has put forth guiding points on the scope and limits of the ownership right. In our view, Decision No. 2018/14389 dated 13 April 2020 will play a crucial role in evaluating cases involving long-standing interim injunctions, while Decision No. 2018/12722 dated 30 June 2021 will play a crucial role in evaluating cases involving higher administrative fines given for repetitions of an act.t.
